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HomeMy WebLinkAbout91-578 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 19, 1991 91 -578 Re: Executive -level State Employee; Former Public Employee; Section 3(g); A's Office; B; C Council; Chair. This responds to your letters of August 14, 1991 and August 26, 1991, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of the B and Chair of the C Council following termination of service with the A's Office and the C Council. Facts: As the present B, you seek a confidential advisory opinion regarding the types of work you could accept and what types of activities you could perform in the private sector should you leave your present employment with the Commonwealth of Pennsylvania. In your present position, you report to Ms. D, who is the E. In the past, you have also reported to Mr. F, who is the G and to Mr. H, who at the time worked for Ms. D and is now involved in his father's campaign for legislative office. You have submitted a resume which is incorporated herein by reference. Your responsibilities with the Commonwealth include those which are outlined in I, a copy of which you have submitted and which is incorporated herein by reference. As a result of your responsibilities, you acknowledge that you work with the J of six K and their L staff. However, you function as the liaison with the six K on L issues only. Your responsibilities as set forth in the incorporated I include the following: 1. Act as a liaison between the A's Office and the K on all issues pertaining to L in the September 19, 1991 Page 2 Commonwealth, and coordinate efforts among the K designated to reduce M and improve N among Pennsylvanians. 2. Review and evaluate the operations and policies of all state and federal L programs administered by the Commonwealth, and work with state and federal officials, state and local L providers, advocates and consumers to increase the effectiveness and accessibility of federal and state L programs to reduce M and improve the N of Pennsylvanians. 3. Organize private and public sector efforts to improve the Commonwealth's response to the L needs of its citizens. 4. Convene meetings and oversee the activities of the C Council, which you Chair, and present the findings and recommendations of that Council to A. Having examined Title 51 (the regulations of this Commission), you state your belief that you would not be within the definition of a public official /public employee. You note that the C Council is an advisory body, and as such, you believe it does not meet any of the tests outlined under the Ethics Law. As Chairman of that Council, you do not believe you could be construed to be a public official. Furthermore, you do not believe that you perform any of the first four enumerated functions within the definition of "public employee" as set forth in both the Ethics Law, 65 P.S. §402, and within the regulations of this Commission, 51 Pa. Code S1.1. Based upon your belief that you do not fit within the first four enumerated functions, you conclude that you would not think that your official action has "greater than a de minimis economic impact." Relative to the criteria set forth in 51 Pa. Code 51.1(i)(B), you admit that you perform your responsibilities without on -site supervision. You state that with the exception of the activities of the C Council, you do not have the authority to: (1) make final decisions, (2) forward or stop recommendations from being sent to the person or body with the authority to make final decisions, (3) prepare or supervise the preparation of final recommendations, or (4) make final technical recommendations. You state that these powers rest with the K of state government. When you are in disagreement, your recommendations are shared with "the person or body with the September 19, 1991 Page 3 authority to make final decisions," which is usually a 0 or P in A's Office. Continuing through the enumerated criteria, you admit that you do make recommendations as an inherent and recurring part of your position, which may affect L programs in six K of state government. However, your recommendations are made as an advisor, which you feel does not provide the authority by which to require action. You believe this differs significantly from recommendations made by executive or special assistants which are acting on behalf of an agency head or governing body. You state that at best, advisors are in a position of competing with agencies when making recommendations, yet are not in a position to make final recommendations or binding decisions. Relative to Subsection (iii) of the definition of "public employee" set forth in the Commission regulations, you state that the position of "advisor" is not synonymous with "special assistant" or with "executive assistant." Although it is not clear to you, you assume that a "special director" generally functions as the chief staff person of a board, commission or an office such as the Q. You do not function in that capacity, nor do you supervise the staff which does. You state that the remaining categories listed in Subsection (iii) do not apply. Finally, although you realize that the functions of an advisor are also not included in the subsection which describes positions not generally considered public employees, you assume that list is not exhaustive, inasmuch as you believe most employees in the public sector fit within this category. You are prompted to seek this advice by a job opportunity in the private non- profit sector. Although you have not yet decided to apply for the position, the result of your inquiry with this Commission may have a bearing on your decision. The job would be working as the Director of an organization which seeks to increase public and private efforts to improve the lives of children. You have submitted a job description for the position, which is incorporated herein by reference. Based upon all of the above, you seek an expedited advisory opinion. Discussion: As the B and Chair of the C Council, you are to be considered a "public official /employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring September 19, 1991 Page 4 grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Additionally, you are an "executive -level state employee" as that term is defined under the Ethics Law because you are a R and because you are a state employee whose discretionary powers and /or job function could affect or influence the outcome of a state agency's decision in relation to a private corporation or business. Even if you were correct in asserting that the C Council is advisory only (a question which need not be considered herein), such that you believe you are not a "public official," your clear status as a "public employee" brings you fully within the restrictions of the Ethics Law. There is no doubt that as the B, you are a "public employee" within the purview of the Ethics Law because your official action clearly has greater than a de minimis economic impact. According to I, your work involves the administration by Pennsylvania of many hundreds of millions of dollars in state and federal funds for S to those in need. Furthermore, you acknowledge that you perform your responsibilities without on -site supervision. You admit that your recommendations are an inherent and recurring part of your position. Your argument that they are made as an advisor and that such differs from recommendations by others, is an unrecognizable distinction. "Recommendations" by, their very nature are advisory. Finally, you clearly fit within the Commission regulations regarding "public employees," 51 Pa. Code 51.1. Particularly with regard to Subsection (iii)(A), in your capacity as the B, you report directly to the A to present the findings and recommendations of the C Council. You are a "public employee" subject to the restrictions of the Ethics Law. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Ethics Law and a former executive -level state employee subject to the provisions of Section 3(i) of the Ethics Law. Sections 3(g) and 3(i) of the Ethics Law provide that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5403(g). September 19, 1991 Page 5 (i) No former executive -level State employee may for a period of two years from the time that he terminates his State . employment be' employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. §403(1). This advice shall first consider the restrictions of Section 3(g), followed by the limitations set forth in Section 3(i). Initially, to answer your request the governmental body with which you were associated while working with the A's Office and the C Council must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as. follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. September 19, 1991 Page 6 In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be the A's Office and the C Council. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with the A's Office and the C Council, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the A's Office and the C Council. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you were associated is the A's Office and the C Council. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on September 19, 1991 Page 7 the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; September 19, 1991 Page 8 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to your former governmental body so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before your former governmental body. Once again, however, the activity in this respect should not be revealed to your former governmental body. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your former governmental body to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Thus, with regard to your job opportunity in the private sector, the Ethics Law would not prohibit your accepting the position. However, during the one -year period following termination of your service with the Commonwealth, you personally may not engage in the prohibited conduct of "representing" any person - including but not limited to the new employer - before your former governmental body. In your capacity as an executive -level state employee, you are also subject to the restrictions of Section 3(i) quoted above. As noted above, Section 3(i) sets forth a specific prohibition that a former executive -level state employee for a period of two years after termination of state employment may not be employed by, receive compensation from or act in a representative capacity for a business or corporation that the former executive -level state employee participated in recruiting to initiate or expand operations in the Commonwealth. It should be further noted that the above restriction is limited to the situation where the recruitment is accomplished by a grant or September 19, 1991 Page 9 loan for money or promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to initiate or expand operations. The intendment of the above provision of the Ethics Law is to prohibit an executive -level state employee from trading upon his ability to influence the disposition of public funds'to private businesses or corporations by securing future employment from entities receiving such funds. Thus, if you were engaged in activities as outlined above, you would be subject to the two year employment restriction of Section 3(i) of the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As the B and the Chair of the C Council, you are to be considered a "public official /employee" as defined in the Ethics Law. You are also an "executive -level state employee" subject to Section 3(i) of the Ethics Law as noted above. Upon termination of Service with the A's Office and the C Council, you would become a "former public official /employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the A's Office and the C Council. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all September 19, 1991 Page 10 the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. cerely, 1m Vincent `3`. Dopko Chief Counsel